This is a case about how a court may dispose of a copyright infringement action based on the fair use affirmative defense while avoiding the burdens of discovery and trial. This case also poses the interesting question of whether the incorporation-by-reference doctrine applies to audio-visual works.

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Having confirmed that the district court could properly dismiss the suit on the basis of an affirmative defense at this early stage of the proceedings, all that remains is to determine if the district court erred in its fair use determination. This matter is simple because Brownmark, in response to SPDS's motion, did not address fair use as applied to the WWITB videos, and instead insisted that the court could not consider the matter at a 12(b)(6) stage. Since Brownmark never opposed SPDS's fair use argument in the district court, we consider the argument waived. However, even if Brownmark were not barred from offering argument that SPDS did not engage in fair use, we agree with the district court that this is an obvious case of fair use. When a defendant raises a fair use defense claiming his or her work is a parody, a court can often decide the merits of the claim without discovery or a 10 No. 11-2620 trial. When the two works in this case are viewed side-by- side, the South Park episode is clearly a parody of the original WWITB video, providing commentary on the ridiculousness of the original video and the viral nature of certain YouTube videos.

The Copyright Act of 1976 sets forth four, non-exclusive factors that a court must consider in determining whether a particular use of a copyrighted work is a fair use: "(1) the purpose and character of the use . . . ; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107 (2006). We consider each factor in turn, ultimately agreeing with the district court's analysis and findings. Central to determining the purpose and character of a work is whether the new work merely supersedes the original work, or instead adds something new with a further purpose or of a different character.

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The underlying purpose and character SPDS's work was to comment on and critique the social phenomenon that is the "viral video." Brownmark's video exemplifies the "viral video." Through one of the South Park characters-the innocent and naïve Butters-SPDS imitates viral video creation while lampooning one particularly well - known example of such a video. Moreover, the episode places Butters' WWITB video alongside other YouTube hits including, among others, the Numa Numa Guy, the Sneezing Panda and the Afro Ninja.

This kind of parodic use has obvious transformative value, which under § 107 is fair use. ...

The creative and expressive nature of the original WWITB places the work within the core of copyright protection. But this factor only establishes that the original elements of WWITB are protected to the outer bounds of copyright protection, which is defined by fair use. In the case of parody, this factor offers little help to Brownmark because "parodies almost invariably copy publicly known, expressive works."

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Regarding the third factor, SPDS's use of the original WWITB was not insubstantial. Certainly, SPDS used the "heart" of the work; the work's overall design and distinctive visual elements. ... But in the context of parody,

"[c]opying does not become excessive in relation to parodic purpose merely because the portion taken was the original's heart."

... Parody therefore "presents a difficult case." Id. Indeed, it may even seem as an anomaly under fair use that parody, a favored use, must use a substantial amount of qualitative and quantitative elements to create the intended allusion; there are few alternatives. But when parody achieves its intended aim, the amount taken becomes reasonable when the parody does not serve as a market substitute for the work. See id. ("[H]ow much more is reasonable will depend . . . on the extent to which the [work's] over- riding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original."). The South Park WWITB is clearly a parody and has not supplanted the original WWITB.

It follows from the third factor that SPDS's parody cannot have an actionable effect on the potential market for or value of the original WWITB video under the fourth factor. As the South Park episode aptly points out, there is no "Internet money" for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had. It seems to this court that SPDS's likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. ...And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicating that the South Park parody has cut into any real market (with real, non-Internet dollars) for derivative uses of the original WWITB video. We agree with the district court's well-reasoned and delightful opinion. For these reasons, the judgment of the district court is AFFIRMED.